“Merchants and Thieves, Hungry for Power”: Prosecutorial Misconduct and Passive Judicial Complicity in Death Penalty Trials of Defendants with Mental Disabilities

Washington and Lee Law Review Volume 73 | Issue 3 Article 14 Summer 6-1-2016 “Merchants and Thieves, Hungry for Power”: Prosecutorial Misconduct and Passive Judicial Complicity in Death Penalty Trials of Defendants with Mental Disabilities Michael L. Perlin New York Law School Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Constitutional Law Commons Recommended Citation Michael L. Perlin, “Merchants and Thieves, Hungry for Power”: Prosecutorial Misconduct and Passive Judicial Complicity in Death Penalty Trials of Defendants with Mental Disabilities, 73 Wash. & Lee L. Rev. 1501 (2016), https://scholarlycommons.law.wlu.edu/wlulr/vol73/iss3/14 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact . “Merchants and Thieves, Hungry for Power”: Prosecutorial Misconduct and Passive Judicial Complicity in Death Penalty Trials of Defendants with Mental Disabilities Michael L. Perlin∗ Table of Contents I. Introduction ...................................................................1502 II. Mental Disability, the Death Penalty and Prosecutorial Misconduct ..............................................1508 III. Prosecutorial Misconduct ..............................................1511 IV. Outcomes of Misconduct ................................................1517 V. “Some Prosecutors Consciously Misuse Mental Disability Evidence to Play on the Fears of, to Scare, and to Exploit the Ignorance of Jurors.” ............1526 VI. Some Prosecutors Consciously Seek out Expert Witnesses Who Will Testify—with Total Certainty—to a Defendant’s Alleged Future Dangerousness, Knowing that Such Testimony Is Baseless. ..................................................1528 VII. Some Prosecutors Suppress Exculpatory Psychiatric Evidence......................................................1529 ∗ Professor Emeritus of Law, New York Law School; co-founder, Mental Disability Law and Policy Associates. The author wishes to thank Krystina Drasher for her invaluable help. 1501 1502 73 WASH. & LEE L. REV. 1501 (2016) VIII. Some Prosecutors Sanction the Improper Use of Antipsychotic Medications at Trial so as to Make Defendants Appear Less Remorseful and as to Make Them Less Capable of Consulting with Counsel. ....................1530 IX. Some Prosecutors Seek the Imposition of the Death Penalty on Defendants Who Are, by Any Objective Standard, Incompetent to be Executed. 1534 X. The Outcomes ................................................................1535 XI. Therapeutic Jurisprudence ...........................................1538 I. Introduction In spite of the Supreme Court’s decisions in Ford v. Wainwright, 1 Atkins v. Virginia, 2 Panetti v. Quarterman, 3 and Hall v. Florida, 4 persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. 5 Although the courts have been aware 1. 477 U.S. 399 (1986). 2. 536 U.S. 304 (2002). 3. 551 U.S. 930 (2007). 4. 134 S. Ct. 1986 (2014). 5. Before Atkins, at least thirty-five mentally retarded defendants were executed in the years after the Supreme Court reinstated the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976). See ROSA EHRENREICH & JAMIE FELLNER, HUM. RTS. WATCH, BEYOND REASON: THE DEATH PENALTY AND OFFENDERS WITH MENTAL RETARDATION 2 (2001) (explaining that the exact number of mentally retarded individuals on death row has not been quantified, but it may be as high as 300). On the “back stories” of several cases in Texas in which individuals with intellectual disabilities have been executed since the decision in Atkins, see Lane Florsheim, How Texas Keeps Putting the Intellectually Disabled on Death Row, NEW REPUBLIC (May 14, 2014), https://newrepublic.com/article/117765/ deathpenalty-mentally-disabled-how-do-states-keep-doing-it (last visited Sept. 8, 2016) (describing how mentally disabled individuals such as Marvin Wilson, a murderer with an IQ of sixty-one, are executed based on faulty science that the state uses to determine mental competency) (on file with the Washington and Lee Law Review). See also Lincoln Caplan, Last Chance for Warren Lee Hill, N.Y. TIMES (Feb. 19, 2013), http://takingnote.blogs.nytimes.com/2013/02/19/last-chance-forwarren-lee-hill/?_r=0 (last visited Sept. 8, 2016) (relaying the story of a mentally retarded individual in Georgia who was sentenced to death under circumstances “MERCHANTS AND THIEVES, HUNGRY FOR POWER” 1503 of this for decades—dating back at least to the infamous Ricky Rector case in Arkansas 6—these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), 7 but little has changed. And the stakes in this should be clear to all: “In some form or fashion, evidence of mental state is pertinent to virtually every capital case.” 8 This is not a surprise to anyone in the criminal justice system, as the treatment of persons with mental disabilities has long been a scandal. When I titled a recent book, Mental Disability and the Death Penalty: The Shame of the States, 9 I did so consciously, because we should all be profoundly ashamed of a system that shames persons with disabilities as well as those who advocate for them. As I stated in that book, there is no question that this cohort of defendants “receive substandard counsel, are treated poorly in prison, receive disparately longer sentences, and are regularly coerced into confessing to crimes (many of which they did not commit).” 10 What may be most scandalous of all is that we know similar to Marvin Wilson and Robert Ladd) (on file with the Washington and Lee Law Review); Kira Lerner, Texas is About to Execute an Intellectually Disabled Man, THINKPROGRESS (Jan. 29, 2015), http://thinkprogress.org/justice/2015/01/29/ 3616830/robert-ladd-execution/ (last visited Sept. 8, 2016) (reporting on the case of Robert Ladd, a murderer with the IQ of sixty-seven to whom Texas just denied a stay of execution) (on file with the Washington and Lee Law Review). 6. See Death for the Mentally Disabled, ECONOMIST (Mar. 8, 2014), http://www.economist.com/news/united-states/21598681-can-you-execute-manwhose-iq-71-death-mentally-disabled (last visited Sept. 8, 2016) (describing how the defendant, going off to his execution, left behind his last-meal dessert, a piece of pecan pie, to have “later”) (on file with the Washington and Lee Law Review). 7. See, e.g., Christopher Slobogin, What Atkins Could Mean for People with Mental Illness, 33 N.M. L. REV. 293 (2003) [hereinafter What Atkins Could Mean] (writing about poten (...truncated)